Roberts v. City of Boston

W. Allen, J. Several questions of evidence are presented by these exceptions. 1. Certain evidence offered by the petitioner was objected to by the respondent, and excluded as incompetent by the court, [353] to which ruling the petitioner excepted. The respondent then withdrew its objection to the evidence, and the court for that reason admitted it. The petitioner declined to put in the evidence, and insisted upon his exception. The exception was to the ruling excluding the evidence, and it necessarily failed when that ruling was reversed and the evidence admitted. The reasons of the court for admitting the evidence were not excepted to, and were not matter of exception, and could not affect the weight of the evidence with the jury. If the evidence was admitted by the court, and put in by the party, the jury would be bound and presumed to give the same effect to it as if it had not before been objected to and excluded. The reasons for excluding or admitting it were not to be considered by the jury. 2. After the petitioner had put in evidence of the cost of repairs and alterations that he had made in the building, the respondent was allowed to ask an expert what in his opinion would have been a fair cost for the repairs and alterations which he saw. The objection is, that the witness did not examine the building until after the work of taking it down had been commenced, and that it had been so changed and so much of it removed that he had not the means of forming an estimate of the cost. The witness testified as to the condition of the building when he made his examination, and that he did in fact form an opinion from what he saw of the cost of the whole. We think that the evidence was properly admitted. 3. A witness, one of the court-house commissioners, and an expert in real estate, who was called by the respondent to testify concerning the cost of improvements made in the house, but did not testify in chief as to his opinion of the value of the estate, testified on cross-examination as to his opinion of the value of the estate of the petitioner. He was also asked on cross-examination various questions concerning the petitioner’s estate, and concerning an adjoining estate, with a view to showing that the petitioner’s estate was much the more valuable, and was then asked if he did not make up his mind that the adjoining estate was worth a certain sum, which was larger than the sum which he had testified that in his opinion the petitioner’s estate was worth. [354] This question was objected to by the respondent, and pressed by the petitioner, as competent to test the value of the opinion of the witness. The court, holding that it was matter of discretion, excluded the question. Had the opinion of the witness as to the value of the petitioner’s estate been put in by the respondent in chief, and the question excluded been put on cross-examination as to that, though the evidence offered would have been immaterial and not competent to prove the value of the petitioner’s land, yet the question might have been admitted, in the discretion of the court, on cross-examination, to test the witness. But the opinion of the witness as to the value of the petitioner’s estate was put in by the petitioner himself, and the court properly refused to allow him to cross-examine the witness on collateral matters to show that the opinion was of no value. 4. The sales of other similar estates in the neighborhood were admissible. Boston & Worcester Railroad v. Old Colony & Fall River Railroad, 3 Allen, 142. Paine v. Boston, 4 Allen, 168. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. Whitman v. Boston & Maine Railroad, 7 Allen, 313. Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305. Patch v. Boston, 146 Mass. 52. The lands sold were near to that of the petitioner, and similar to it, and similarly situated. One sale was about five months, and the other more than twenty months, after the taking of the petitioner’s land. The mere lapse of time after the taking did not render the evidence of the sales incompetent, and, as the circumstances appear in the evidence, the discretion of the court seems to have been rightly exercised in admitting the evidence. 5. The petitioner called a witness who purchased one of the estates the sale of which was put in evidence by the. respondent, and who was an expert in the value of real estate, who testified that he employed an agent to bid off the property for him at the sale, and fixed a maximum limit to be bid therefor. The petitioner offered to show what the limit was, and that the agent was instructed to bid for the property more than it was sold for. An exception was taken to the exclusion of this evidence. The petitioner also offered to prove that the witness was, on the day of the sale, offered a large advance on what he paid for the [355] property, and also what in the opinion of the witness was the value of the property, and exceptions were taken to the exclusion of the evidence. The sale was competent, as a fact tending to show the market value of the land, not as evidence of the opinion of the purchaser as to the value. The opinion of the witness of the value of the land, and the fact that he had offered more, and was willing to pay more, or had been offered more than the land sold for, are clearly incompetent. The fact that the witness was the purchaser at the sale makes no difference. Rand v. Newton, 6 Allen, 38. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. Wyman v. Lexington & West Cambridge Railroad, 13 Met. 316. Davis v. Charles River Branch Railroad, 11 Cush. 506. . 6. It was said by the same witness during his examination in chief, that he made the purchase in order to have a place to stop after the court-house was started. On cross-examination he was asked for what purpose he bought it, and if he bought it because the court-house had been located in that vicinity, and answered in substance that he bought it for an office, and because he had been near there seventeen years and was wonted there. On reexamination the petitioner asked him if all the object he had when he bought was simply for an office, and whether the fact - of the city taking the court-house site was the only reason. These questions, and the re-examination of the witness on the subject, were excluded by the court. The motive and purpose of the witness in making the purchase were immaterial; the proposed re-examination was as to immaterial matter. There was nothing in the testimony of the witness on the subject which could prejudice the petitioner, and the court properly refused to' allow the subject to be further pursued by a re-examination upon it. ¡Exceptions overruled.